Reinterpretation of laws

ISLAMIC law is the body of rules of conduct, revealed by God to His Prophet (peace be upon him), whereby the people are directed to lead their lives. Thus, unlike the western systems of law, the laws of Islam originate from revelation.

Revelation consists of the communications made by Gabriel, under the directions of God, to the Prophet, either in the very words of God or by hints; such knowledge as occurred in the mind of the Prophet through the inspiration from God; and the opinion of the Prophet, embodied in the form of ratiocination, delivered from time to time on the questions that happened to be raised before him.

The question may arise as to why the opinion of the Prophet is a part of revelation? Well, it is so because God has said: “Your companion (the Prophet) errs not, nor does he deviate, nor does he speak out of desire. It is naught but revelation that is revealed. One Mighty in power has taught him, the Lord of strength. So he attained perfection.” (Al-Quran: Al-Najam; 2-6)

Revelation is available to us in the form of the Quran and the traditions of the Prophet. The Quran comprises only those revelations that are made in the very words of God, while the rest form the corpus of the Traditions.

The rules of conduct provided by revelation comprise: Laws which regulate men’s relations to and dealings with one another; laws which are concerned only with the spiritual aspect of individual life; and laws that not only concern the spiritual aspect of individual life, but also affect the Muslim society.

Another distinctive feature of the Islamic law is that it attributes the authority of making laws to God only. According to the laws of Islam, no man or body of men can ever be capable of or allowed to make laws for other men. Now the big question arises that as the last set of laws made by God was bestowed upon mankind centuries ago, and as much has changed in the world since then, so in the absence of new laws for the new circumstances, how Islam managed to survive?

In other words, as new laws cannot be made by men and as God has also not given any further laws, how can Islam cope and deal with the modern issues? It is an established fact that a legal system has to continuously adapt to the needs of the changing times; otherwise, it loses it applicability and gradually fades away.

To begin with, as the laws available in the form of revelation are concerned, in them God has explained the fundamental principles of behaviour pertaining to all the essential human transactions, dealings, and matters. He says: “...I have perfected for you your religion and completed My favour to you...” (Al-Quran: Al-Maidah; 3) “... And We have revealed the Book to thee explaining all things...” (Al-Quran: Al-Nahl; 89) “And certainly We have set forth for men in this Quran similitudes of every sort that they may mind.” (al-Quran: Al-Zumar; 27) “...If you quarrel about anything, refer it to Allah (i.e., the Quran) and the Messenger (i.e., the traditions), if you believe in Allah and the Last day...” (Al-Quran: Al-Nisa; 59).

The verses tell us: Revelation is a complete set of guiding principles; and Revelation is well capable of setting and dealing with all controversies, conflicts, and problems.

However, where there is no room for the making of new laws, there is also no prohibition on the innovation, extension, and re-interpretation of the existing laws. This very process — which is highly encouraged by God and His Messenger — of innovation, extension, and re-interpretation of laws given in the Quran and the Traditions, in order to explain and analyse the legality of latest issues, is denoted by Ijtehad. It is the method of Ijtehad by which God has enabled the Muslim jurists to make provisions for the developing circumstances and prove Islam as a system of life practical for all times.

When a single jurist conducts Ijtehad, it is called ‘Qiyas’; and when a body of jurists conducts it, it is called ‘Ijma’. If a Qiyas and an Ijma, both conducted at the same time regarding the same thing, come into conflict with each other, then Ijma is preferred over Qiyas. This is done due to the presumption that the jurists acting in a body are less likely to err than a jurist acting alone.

Let us see some examples of how the law is innovated and developed by way of Ijtehad. The Quran (Al-Maidah; 90, 91) has forbidden the drinking of alcohol. The ban has been put due to its being an intoxicant. By using Ijtehad this ban on the non-medical use of alcohol is applied to the non-medical use of all substances that have the property of intoxication. Heroin, which is a recent discovery, is also prohibited due to the same reason.

The Quran enjoins honouring of contracts and honesty in trade. These centuries old commandments are also applied to the present-day online contracts and e-business. Similarly, whether a person steals money by using the conventional methods, or by drawing cash on a stolen credit card, or by transferring sums to his account by manipulating the computer system of a bank, he will remain a thief and will be dealt with in accordance with the laws given in the Quran and the Traditions.

The law developed by way of Ijtehad may or may not be good for all times. The whole universe is in transition; consequently, a rule that is suitable for a certain matter under the present circumstances may not be so if the facts governing the matter undergo a change.

This gives rise to the necessity for a continuous exercise of Ijtehad. To put it differently, whereas the law given in the form of revelation cannot be altered, amended, or annulled by the Muslim jurists, the law obtained by practising Ijtehad can be modified, replaced, or cancelled according to the demands of the latest facts.

The empty chair club

ANYONE in Pervez Musharraf’s position would find it difficult to deny the existence of God. From the moment he boarded flight PK 805 on October 11, 1999, at Colombo airport as a dismissed chief of army staff until the moment he alighted as president of Pakistan from a US helicopter at Camp David on June 24, 2003, every action that he has taken has been as if blessed by a ‘hidden hand’, some higher authority.

How else can one explain the miraculous recovery he has made within three years, from his public rejection on March 25, 2000, in Islamabad by the 42nd president of the United States when Bill Clinton refused to be seen in public with him, to the unprecedented welcome on the lawns of Camp David by the 43rd President of the United States where George W. Bush described him as a “visionary and a courageous leader”? Such a turnaround in politics is something mortals can only dream about, and only divinities have the power to grant.

Against this backdrop, President Musharraf’s recent tour of the United States, the United Kingdom, Germany and France has been an unprecedented triumph. Few heads of unstable Third World countries have been showered with so many accolades. Nor has the leader of any country so far from Iraq been feted with such warmth by both sides of the international diplomatic divide.

The fact that Musharraf had aligned Pakistan with the United States and Britain did not prevent the Germans and the French who had opposed the Iraq invasion from greeting him with state pomp and an indulgent forgiveness. Even though the steps Musharraf has taken to reintroduce a ‘sustainable’ democracy in the country have not been enough to qualify for re-entry into the Commonwealth, it did not prevent British Prime Minister Tony Blair from glossing over this lacuna when welcoming him into 10 Downing Street.

And despite President Musharraf’s refusal to genuflect before the majesty of the 1973 Constitution, this act of defiance did not prevent him being feted at a banquet held in the hallowed precincts of Lincoln’s Inn, where M.A. Jinnah had himself studied constitutional law. Behind the podium where Musharraf spoke hung a portrait of the Quaid, insinuating a natural continuity between the patrician lawyer whose mission was to found a state for the Muslims of the subcontinent and the pragmatic general whose mission it is to protect the same nation from a take-over by religious orthodoxy.

That perhaps is the key to President Musharraf’s current popularity among western leaders. In the eyes of President Bush, Prime Minister Blair, Chancellor Schroeder and President Chirac, a liberal-minded Musharraf is their chosen bulwark — a one-man Great Wall of China — against the barbarian hordes of fundamentalism, extremism, and terrorism, each ism is a successor to the 20th century’s communism.

In the minds of his hosts, there was never any confusion about Musharraf’s identity. His choice of dress did not distract them, as it had his domestic opponents. He was received everywhere for what he was — Pakistan’s Chief of Army Staff, in civvies. The very composition of the team he took with him — his Finance Minister Shaukat Aziz and the constitutional Houdini Syed Sharifuddin Pirzada — revealed the specificity of his agenda. He deliberately did not take any elected representative with him, not even Foreign Minister Mian Khurshid Kasuri, because he had no need for even a token symbol of democratic representation.

His hosts on their part acknowledged that his mandate to speak for Pakistan was not derived from any parliament. It was self-given, like that of French general and president, Charles de Gaulle. “When I want to know what France thinks,” de Gaulle once said, “I ask myself.” Similarly, when President Musharraf wants to know what Pakistan thinks, he asks himself. When he wants to know what to do, he asks Washington, or so his critics contend.

And today, as the price for that not-so-free lunch at Camp David, General Musharraf has probably been told what to do, including sending Pakistani troops to stand in for the Americans in Iraq, just as the US itself once replaced the French (with disastrous consequences) in Indo-China. As a quid pro quo, Musharraf has asked that he be provided some sort of UN or OIC cover. However impenetrable that cloak of protection may be, it will never hide the reality that by becoming an accessory in the subjugation of Iraqi Muslims, Pakistan’s moral claim to uphold the cause of the Kashmiri Muslims might stand impaired.

The aid packages the four nations have offered Musharraf reflect his true persona. They are military in nature — radar and surveillance equipment from Germany, unspecified hardware and supplies from France, and one and a half billion dollars of arms supplies from the US. He may have got what Pakistan’s armed forces may need, but he has been denied what Pakistan had once paid for — the F-16 aircraft, the most expensive set of unused dentures in history.

How will India view this revitalization of Pakistan’s military capability? Will it regard this (despite the US and Pakistani protestations to the contrary) as yet another example of US-supplied, India-specific militarization? Significantly, Prime Minister Vajpayee’s week-long visit to China is indicative of the direction in which the winds of change are blowing throughout our eastern hemisphere. What is relevant is not that China (Pakistan’s all-weather friend) is cozying up to India (Pakistan’s all-weather adversary); what is portentous is that two oriental superpowers in the making are taking steps to define their respective spheres of influence in this region, without feeling the need of consulting the US.

Can America’s weight on the side of Pakistan counter-balance any incipient Sino-Indian understanding? History gravitates against such a proposition. What is taking place in the Himalayan region is not merely a contact between two large populous countries that have a common border; it is a convulsive, tectonic movement of two of the oldest civilizations on earth — the Chinese and the Indian — two plates coming together in controlled collision.

Pakistan’s relationship with the United States, by comparison, will always have a brassy ring to it, because it has always been based on a transient compatibility of interests, never of comparability. Pakistan as a country will never have the stature to view the world from any significant height. That is why US governments have preferred to lift up individual military supremos like Ayub Khan, Yahya Khan, and Ziaul Haq, to their own superpower level and to share with them their lofty vision of the world’s order. The Pakistani public per se has never mattered, neither then, nor now. The proverb is an old enough one: Take care of the pound, and the 150 million pennies will take care of themselves.

Returning home from such a triumph, President Musharraf would not have been human had he not expected something more befitting a public acknowledgement of his achievements than a bloodstained bouquet from Quetta. However hurtful it may be to him personally, it is a cruel reminder of the unavoidable maxim in politics, a truth that Nixon learned despite his success in China, Mrs Thatcher on her way back from Paris before her ouster by her Cabinet, and President George Bush St when he lost the election after the Gulf War: recognition abroad is no substitute for support at home.

By allying himself unequivocally with the United States (whether he had a choice no longer matters) President Musharraf has opted for admission in a club that has a sinister record of membership. Previous members included such committed Americo-phones as Nguyen Van Thieu in South Vietnam, Dominican President General Trujillo, Filipino President Marcos, Iran’s Shah Reza Pehlavi, Egypt’s Anwar Sadat, Panama’s Manuel Noriega, and Musharraf’s predecessor as COAS and subconscious role model General M. Ziaul Haq. Each of their chairs is now empty.

US credibility under fire

COMMANDERS in chief can’t always offer unequivocal candour about military affairs. In 1940, Franklin Roosevelt quietly shipped destroyers to England; that act, history has decided, proved to be a blessing. But disaster followed when Lyndon Johnson exploited the Gulf of Tonkin incident to escalate the US role in Vietnam.

Now President Bush and his administration march perilously close to crossing the line in giving Americans — and the world — questionable information on the US involvement in Iraq.

It’s becoming a pattern: The administration acts on what it declares to be good intelligence. Then, reality gets shrouded in uncertainty.

The US assault on a six-vehicle convoy earlier this month near the Iraqi city of Qaim illustrates the problem. US officials relied on what they first said was sound intelligence indicating that Saddam Hussein and his sons were part of the convoy. Now they concede there’s no evidence they were. Instead, the world learned that US troops wiped out a tiny village of Bedouins. US military vehicles then sealed the area to prevent journalists from entering.

Nor is there greater clarity on the biggest intelligence issue — Iraq’s disputed weapons of mass destruction. More allegations emerge almost daily concerning State Department and CIA analysts being pressured to alter threat assessments. A United Nations special terrorism committee says it finds no evidence of Al Qaeda-Iraq ties, links that Bush officials insist exist. But the White House is blocking a thorough congressional investigation of prewar Iraq intelligence.

The June 30 New Republic reports that Vice President Dick Cheney told Senate Republicans in a June 4 Capitol Hill visit to back off; Sen. John Warner, R-Va., chairman of the Senate Armed Services Committee, promptly retreated from his call for public hearings. Last week, the committee’s Democrats split with Warner and said they would conduct their own intelligence examination using Democratic staffers.

The House rejected two amendments in its intelligence spending bill, which was passed last week. One amendment, by Rep. Dennis J. Kucinich, D-Ohio, was just a fishing expedition against Cheney and the CIA. But the other amendment, by Rep. Sheila Jackson-Lee, D-Texas, would have let the comptroller general examine how much US intelligence was shared with U.N. inspectors before the war.

The White House argued that Iraq’s banned weapons were ubiquitous and would be easy to find. — Los Angeles Times

Camp David and beyond

SYEDA Abida Hussain, Pakistan’s former ambassador to the United States, while taking part in a TV discussion on Camp David, in London, argued that, “Pakistan has always desired marriage with America but the latter has preferred muta; she was referring to the derogatory practice of one night stands, considered permissible in some sects within Islam, and still seen in parts of Iran.

But she was hardly speaking for herself; if anything she gave a powerful expression to the feelings and fears of two generations of Pakistanis who have seen the ups and downs of US-Pakistan relations. To them the US has always exploited Pakistan for short-term gains, absconding in time, like that rich and brute philanderer that leaves his helpless mistress to seek an abortion, and that too on her own.

And they have a case in point. In 1990, immediately after the end of the Afghan war, a battered and bruised Pakistan, burdened with all the ills of a major regional war, was if anything in the greatest need of continued US assistance and goodwill. However, it was exactly at that moment in time when the great American mind decided to punish its erstwhile ally by imposing sanctions — at the altar of a policy that failed to achieve anything.

It is essentially against this background reeking with suspicion and mistrust that Pakistani commentators have received the Camp David pronouncements and the measly package which the Bush administration has offered. Critics thus argue that Musharraf regime has undersold the country.

They point out that whereas many countries in this region, after 9/11, offered ‘hot balloons of support’ to the US, Pakistan was the only one that opened two-thirds of its air space, diverted its commercial traffic, offered its ports for large amphibious operations and developed close cooperation with the Pentagon and the US intelligence community that delivered concrete results by yielding more than 500 Al Qaeda fugitives for further investigation. And they cite Centcom data, of May this year, to point out that as a consequence of the US operations in Afghanistan, Pakistani economy suffered losses of over $10 billion. The US has thus fallen way short of their expectations in every respect.

This line of reasoning has its strong points but then it has its limitations too. It will be naive to deny that it was also with the US help and goodwill that Pakistan managed a turnaround of its visibility, image and economy since 9/11; the loan rescheduling of $12.5 billion by the Paris Club and an immediate cash injection of over one billion dollars are good examples in point.

But much more than all this is the continued perception of the US interest in, and engagement with, Pakistan that is helping and will help the country integrate itself better in the emerging regional and international contexts and in terms of national consciousness and sensibility. These comments, however, may not be misconstrued to feed the misjudgments of those immature minds who continue to hover between depths of self-pity and megalomania.

Pakistan, by virtue of its size, geostrategic location, and certain institutional endowments is and will continue to be an important entity. However precisely because of these reasons it also straddles across zones of great flux and fluidity and continued engagement with the US which has growing stakes in India anyway will help Pakistan better manage the process of change which is inevitable whether our pundits in Lahore and Islamabad like it or not. The intellectual and policy challenge for Pakistan is to prevent the US engagement in South Asia from turning into a zero-sum game. The Musharraf government has not done a bad job in this respect so far.

Let’s put it this way: though Bush and Musharraf had their ties down, there was no honeymoon between Islamabad and Washington. It was never so for the Americans but now even the naive Pakistanis have learnt their lessons. President Musharraf was called to the Camp David not because he made a request for it or was to be thanked for the help provided in the war on terror or that democracy was on American minds or they were really dying for India’s concerns over Kashmir but because there was an accumulation of regional concerns in which Pakistan could contribute and Washington was prepared to tailor a ‘carrot and stick’ inducement to persuade.

Camp David should be viewed in the light of the US concerns in Iraq, the continuing and potential instability in the Middle East, the growing disorder in Afghanistan, US interests in India and in turn Indian concerns over Kashmir, and the possible recognition of Israel by Pakistan. From the conditions attached to the package, it is obvious that the US wants Pakistan to move along a path that entails compromises and even difficult adjustments. But the very nature of this bargain and the multiplicity of the issues involved provides political space and opportunities to Pakistan.

This is not to suggest that many within and outside the US administration, Congress and the media will not build, contrive or imagine cases against Pakistan; in fact, there is evidence to suggest that the lobbies hostile to Pakistan have redoubled their efforts to shorten the political space available to Pakistan in Washington’s scheme of things.

In the coming months these efforts will, if anything, be intensified. Selig Harrison, Jim Hoagland, Frank Pallone and others in the media and think tanks will continue to cry themselves hoarse against the US administration for maintaining ties with a regime or country that to them — or their mentors — is undemocratic, jihadi or plain evil but the outcome will depend on how Islamabad tries to create new alliances or neutralize hostile elements by working carefully on various issues facing it.

The outcome of the Camp David meeting should therefore not be seen through the screen of a calculator or even a banking spread sheet. This should be understood as a continuing opportunity to make proper use of as it unfolds. In this evolving arena standing still is not an option; interaction is not between romantic lovers but between conflicting interests and perceptions, and whereas painful compromises have to be made, there is no reason to believe that all good deeds will be rewarded. Let’s have a brief look at these issues on which progress may or may not be possible.

As I write these lines, both the State Department in Washington and the Foreign and Commonwealth office in London are busy assembling experts on Kashmir to listen to and understand in order to develop perspectives on the possible way forward. Any real progress may however be limited, because whereas Pakistan might be prepared to make major concessions, India may not be able to move forward because to its internal political difficulties to forge any kind of consensus on any major issue. This should however not stop Pakistan from moving forward to normalize relations in other areas — an important uniting theme can be the projected Turkmenistan-Pakistan-India gas pipeline.

Afghanistan, unfortunately, will continue to suffer from its chaotic internal situation, unless the US develops an initiative to confront warlords and helps the Karazai government in Kabul more meaningfully to establish its writ. In either case Pakistan will continue to play a vital role both regionally and internationally.

But there are at least three or four different areas where the Musharraf government can move at once. First, it needs to develop a domestic and Islamic bloc consensus, on the modalities for sending its troops to Iraq. American adventurism in Iraq was disgusting but its failure will be even more destabilizing for this region. And this is an area where Pakistan’s highly disciplined troops can make a real difference by providing a bridge between the Americans and the Iraqis. With good homework and agreed framework, Pakistani troops, under able command, can play a very important role in the post-war phase in Iraq.

Second, Musharraf deserves credit for mustering the courage to point out that we have been more catholic than the Pope and more Palestinian than the Palestinians on the issue of recognizing Israel. Since the early nineties there has been an unsuccessful debate raging inside the army and the Foreign Office on this issue. For instance, a faculty survey in the prestigious Civil Services Academy in the late nineties found almost 80 per cent of the officers in favour of recognizing Israel.

Now the immediate trigger for this might be coming from Indian attempts to court Israel — the so called strategic relationship; which is more on the Indian minds because the thought that dominates Israeli mind is commercial. But Pakistan has different kinds of advantages from this potential move. One, it will send a much needed clear internal and external signal that Pakistan is only concerned with its own surroundings. Second, it will help Pakistan increase its political space internationally and especially in Washington where it will neutralize certain hostile sections.

However this needs careful consensus building across the political divide and in the media. Religious parties may never come aboard on this but with a careful strategy they might be neutralized. Given the hype built around this issue, it actually looks more difficult than what it might turn out to be. Pakistani people are far more nationalistic and self-interested rational beings than commonly recognized. And this issue should provide the government and the secular parties an opportunity to think in purely nationalistic terms.

The writer is a member of the International Institute of Strategic Studies, London.

E-mail: pirzada@aopp.org